Citation Nr: 0409220
Decision Date: 04/08/04 Archive Date: 04/16/04
DOCKET NO. 00-16 291 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Whether new and material evidence has been received to reopen
a claim for service connection for a low back disorder.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
Michelle L. Nelsen, Counsel
INTRODUCTION
The veteran had active service from September 1979 to June
1980.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2000 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama.
In a July 2001 decision on appeal, the Board remanded the
case to the RO for additional development. Upon return to
the Board, in October 2002, it issued a decision in which it
denied the appeal as a matter of law. The veteran appealed
this decision to the U.S. Court of Appeals for Veterans
Claims (Court). Pursuant to a Joint Motion for Remand, in a
September 2003 Order, the Court vacated the Board decision
and remanded the matter to the Board. By letter dated in
November 2003, the Board advised the veteran that he had
additional time in which to supplement the evidence and
argument before the Board. The February 2004 response from
the veteran's representative has been associated with the
claims folder. The case is again ready for appellate
consideration.
This appeal is REMANDED to the RO via the Appeals Management
Center (AMC) in Washington, DC. VA will contact you if
further action is required on your part.
REMAND
The Veterans Claims Assistance Act of 2000 (VCAA), 38
U.S.C.A. § 5100 et seq. (West 2002), was enacted during the
course of this appeal. See 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326(a) (2003) (regulations promulgated to implement
the statutory changes). Among other things, the VCAA
enhanced VA's duty to assist a claimant in developing facts
pertinent to his claim, and expanded VA's duty to notify the
claimant and his representative, if any, concerning certain
aspects of claim development.
In order to comply with the duty to assist pursuant to the
VCAA, the Board's July 2001 remand included instructions for
the RO to arrange for the veteran to be scheduled for a VA
examination to determine what, if any, low back disorder the
veteran had and whether the disorder was etiologically
related to his period of service. See 38 U.S.C.A. § 5103A(d)
(VA's duty to assist includes providing a medical examination
or obtaining a medical opinion when necessary to make a
decision on the claim). A computer-generated document in the
claims folder states that such an examination and opinion was
requested in November 2001 and lists the veteran's name and
address of record. A subsequent document indicates that the
veteran failed to report for the examination and that the
examination was cancelled in December 2001. In its October
2002 decision, the Board denied the appeal, concluding that
the veteran received notice of the examination yet failed to
report without showing good cause. See 38 C.F.R. § 3.655(b)
(when a claimant fails to report for an examination scheduled
in conjunction with a reopened claim for a benefit which was
previously disallowed, the claim shall be denied). However,
as discussed in the Joint Motion for Remand, there is no
document of record that shows the date on which the
examination was scheduled or that provides the veteran with
notice to report for the examination on that date.
In addition, the July 2001 Board remand also instructed the
RO to comply with the duty to notify pursuant to the VCAA.
See 38 U.S.C.A. § 5103(a) (upon receipt of a complete or
substantially complete application, VA must notify the
claimant and his representative, if any, of any information
or lay or medical evidence not previously provided that is
necessary to substantiate the claim and of what information
or evidence the claimant should provide and what information
or evidence VA will attempt to obtain on the claimant's
behalf); Quartuccio v. Principi, 16 Vet. App. 183 (2002).
The RO issued the veteran a VCAA letter in November 2001.
However, as noted in the February 2004 Written Brief
Presentation from the veteran's representative, neither the
letter nor any other document specifically complies with the
notice requirements at 38 U.S.C.A. § 5103(a).
A remand by the Board confers on the claimant, as a matter of
law, the right to compliance with the remand orders. Stegall
v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board
to insure compliance with remand instructions constitutes
error and warrants the vacating of a subsequent Board
decision. Id. Therefore, another remand is required so that
the RO may comply with the July 2001 Board remand and VCAA
notice and assistance requirements.
Accordingly, the case is REMANDED for the following action:
1. The RO should take the necessary
steps to comply with the VCAA, to include
notifying the veteran and his
representative of any information or lay
or medical evidence not previously
provided that is necessary to
substantiate the claim of whether new and
material evidence has been received to
reopen a claim for service connection for
a low back disorder, and of what
information or evidence the veteran
should provide and what information or
evidence VA will attempt to obtain on his
behalf. This notice should comply with
38 U.S.C.A. § 5103(a), Quartuccio v.
Principi, and any other applicable legal
precedent. The RO should allow the
appropriate period of time for response.
2. The RO should schedule the veteran
for an appropriate VA orthopedic
examination. The RO must ensure that the
veteran is properly notified at his
address of record of the date on which he
is to report for the examination.
Documentation of such notice must be
associated with the claims folder.
The examiner should be provided a copy of
this remand together with the veteran's
entire claims folder, and the examiner is
asked to indicate that he or she has
reviewed the claims folder. All
necessary tests should be conducted and
the examiner should review the results of
any testing prior to completion of the
report.
The examiner should proffer an opinion as
to whether the veteran now has a lower
back disability/condition and whether any
found condition is related to any
condition suffered from by the veteran
while he was in the military. The
examiner must provide a comprehensive
report including complete rationales for
all conclusions reached. If further
testing or examination by other
specialists is determined to be
warranted, such testing or examination is
to be accomplished.
3. The veteran is hereby advised that
failure to report for a scheduled VA
examination without good cause shown may
have adverse consequences for his claim.
4. After completing any additional
necessary development, the RO should
readjudicate the appeal. If the
disposition remains unfavorable, the RO
should furnish the veteran and his
representative a supplemental statement
of the case and afford the applicable
opportunity to respond.
Thereafter, the case should be returned to the Board for
final appellate review, if in order. The veteran has the
right to submit additional evidence and argument on the
matter or matters the Board has remanded to the RO.
Kutscherousky v. West,
12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory
Notes). In addition, VBA's Adjudication Procedure Manual,
M21-1, Part IV, directs the ROs to provide expeditious
handling of all cases that have been remanded by the Board
and the Court. See M21-1, Part IV, paras. 8.43 and 38.02.
_________________________________________________
BETTINA S. CALLAWAY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2003).